United States v. Shaw

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 6, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-6052 (D.C. Nos. 5:19-CV-00457-R ZACHARY ANDREW SHAW, 5:16-CR-00160-R-2) (W.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges. _________________________________

Petitioner-Appellant Zachary Shaw, a federal inmate appearing pro se, seeks a

certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255

motion. In 2016, Mr. Shaw pled guilty to possessing with the intent to distribute

mixed methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court

sentenced him to 163 months’ imprisonment. Mr. Shaw appealed and we granted the

government’s motion to enforce the appeal waiver contained in the plea agreement

and dismissed the appeal. See United States v. Shaw, 752 F. App’x 631 (10th Cir.

2018).

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Following the dismissal, Mr. Shaw filed a § 2255 motion in the district court

alleging ineffective assistance of counsel because counsel (1) misunderstood how the

Sentencing Guidelines operated; (2) failed to argue that the sentencing disparity

between mixed and actual methamphetamine justified a lower sentence; and (3) did

not seek specific performance of his plea agreement, which was based on mixed, as

opposed to pure, methamphetamine. The district court rejected these arguments and

denied Mr. Shaw’s § 2255 motion. United States v. Shaw, Nos. CR-16-160-R; CIV-

19-457-R, 2019 WL 7116109 (W.D. Okla. Dec. 23, 2019).

On appeal, Mr. Shaw pursues the third ground. He points out that his plea

agreement explicitly refers to mixed methamphetamine — rather than pure

methamphetamine — which caused him and his attorney to believe his base level

offense would be 32 rather than 36. He states that he was not informed of a lab

report that indicated the methamphetamine was 95% pure. The district court

concluded that counsel could not have been ineffective for failing to raise this issue

because the plea agreement was not breached; the plea agreement stated nothing

about purity or quantity and Mr. Shaw was informed of the maximum exposure.

Shaw, 2019 WL 7116109, at *3–4.

To obtain a COA, Mr. Shaw must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court

rejected Mr. Shaw’s constitutional claims on the merits, he “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We do

2 not think that the district court’s resolution of the issues is reasonably debatable

because Mr. Shaw cannot establish deficient performance or prejudice given that the

plea agreement was not breached. See Strickland v. Washington, 466 U.S. 668, 687–

88, 694 (1984).

We DENY a COA and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge